Orphan Works Legislation Appears Unlikely

By Andrew Albanese
|

Mar 08, 2013

When the U.S. Copyright Office asked for comments on the thorny orphan works problem last October, hopes were raised that a legislative solution could be in the offing. But after initial comments from both individuals and organizations—including libraries, publishers, visual artist groups, scholars and Internet firms—it is now looking like meaningful orphan works legislation may not be in the cards. In final reply comments filed this week, the Library Copyright Alliance noted that “the significant diversity of opinion expressed in the initial comments” suggested it would be “extremely difficult to forge a consensus approach to these issues.”

Orphan works are works that are assumed to still be under copyright but whose owners cannot be located, including a great number of works in library collections. The Copyright Office issued notice on October 22, 2012 in the Federal Register seeking comments on the issue, noting that the "uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system,” and adding that orphan works are “a frustration, a liability risk, and a major cause of gridlock in the digital marketplace.” The inquiry was launched to help the Copyright office “advise Congress as to possible next steps.”

The inquiry comes after the last attempt to address orphan works, the Shawn Bentley Orphan Works Act, died in Congress in 2008. Although that 2008 bill managed to pass the Senate, and garnered critical support from publishers and libraries, it also exposed deep fault lines within the copyright debate. The legislation was so limited that many early supporters eventually abandoned it, including Stanford’s Lawrence Lessig, who called it “amazingly onerous and inefficient.” And artists and photographers, including the ASMP generated tens of thousands of letters to Congress expressing opposition. If passed, the bill would have subjected good faith users only to normal, reasonable license fees if a copyright owner later surfaced, and relieved statutory or punitive damages as long as the user had conducted “a reasonably diligent” search before making use of an orphan work.

In comments filed with the Copyright Office, much of the 2008 bill's opposition remained, while some sought to renew efforts to at least mitigate orphan works issues, including mass digitization.

In its initial comments, the Association of American Publishers, in coalition with other publishing organizations (AAUP and SIIA) noted it constituents are both owners and users of copyrighted works, and backed “a solution that balances the interests of both parties." And in its most recent comments, AAP signaled a willingness to discuss a solution that could specifcally accommodate mass digitization. "Given the advancements in technology, the wide availability of online data, and constantly improving registries, it is not implausible to believe that a search protocol could be designed that would be as effective as an individual user’s reasonably diligent search,” the AAP comments note. However, AAP added that at this time it was not ready to “endorse such an approach,” but looked forward to reviewing the comments of stakeholders that have "an interest in engaging in mass digitization efforts.”

In its original comments, Google urged the Copyright Office to pursue changes that would free orphan works from “a sort of purgatory,” that in effect has left “hundreds of years of study and experience forgotten and unused, gathering dust on library shelves." In its most recent comments, Google focused as well on the need for an orphan works solution that could accomodate "mass digitization efforts," specifically noting that the 2008 bill did not, as the requirements of a "reasonably diligent search" are incompatible with mass digitization, and do not cotemplate "automated searches" that "meet objective, pre-determined criteria."

In a final reply, filed this week, the American Society of Media Photographers reiterated its belief that voluntary participation in registries is the only viable way to ease the problem, and that any attempt to impose new "formalities" would be “a thinly veiled attack on copyright owners’ rights” and would “ultimately harm the users of copyrighted materials.”

Perhaps the biggest change in position, however, comes from the library community. Once strong, active proponents of orphan works legislation, it has now cooled on the need for potential changes to the law—thanks to a string of recent court decisions that have bolstered fair use. Despite a long history of involvement with orphan works, the library comments note that "significant changes in the copyright landscape over the past seven years convince us that libraries no longer need legislative reform in order to make appropriate uses of orphan works.”

Rather, the LCA recommends that the Copyright Office pursue only “non-legislative solutions” to the orphan works issue, such as “continuing to make the Copyright Office records more accessible.” If, however, the Copyright Office does decide to recommend a legislative solution, it recommended a simple one sentence amendment to the Copyright Act that would give the courts discretion to “reduce or remit statutory damages if a user conducted a reasonably diligent search prior to the use.”

More importantly, the library community voiced its opposition to any possible legislative approach that would involve licensing—such as extended collective licensing—calling such proposals “completely unacceptable.” Collective licensing as an orphan works solution "would be enormously costly to users," the LCA notes, "and little if any of the fees collected would ever actually reach the copyright owners of the orphan works. Instead, fees would be consumed by the collecting societies’ administrative expenses and the cost of searching for absent owners."

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